TMI Blog2013 (9) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... to valuation of the property - either on the issue of allowing a reasonable margin for market variations, or on the issue of making adjustments for agreements having been entered long ago, can be taken up, before the Departmental Valuation Officer and, therefore, subsequent appellate forums as well. The inherent flexibility in this course of action come to the rescue of the assessee particularly in the case of marginal differences but then instead of the assessee decided to question very application of Section 50C something which we find to be devoid' of legally sustainable merits - Decided against assessee. - IT Appeal No. 1681( Kol.) of 2011 - - - Dated:- 22-2-2013 - Pramod Kumar and Mahavir Singh , JJ. For the Appellant : A.K. Tulsiyan. For the Respondent : K.N. Jana. ORDER:- PER : Pramod Kumar By way of this appeal, the assessee has challenged correctness of learned Commissioner of Income Tax (Appeals)'s order dated 25th January, 2011, in the matter of assessment under section 143(3) of the Income-tax Act, 1961, for the assessment year 2008-09,on the following grounds : "That the ld. CIT(A) erred in confirming the addition made on account of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me under the head long-term capital gains". 3. Aggrieved, assessee carried the matter in appeal before the CIT (Appeals), but without any success. In a very erudite and detailed order, learned CIT (Appeals] confirmed the action of the Assessing Officer and observed as follows :- 4. I have carefully considered the submission of the appellant and have also perused the assessment order. The reasons based on which the addition has been made by the A.O. has been discussed in the submission of the appellant. The issue involved here is whether the AO has rightly taken the. value adopted by the Stamp Duty Authority as the full value of consideration instead of sale consideration declared by the assessee in respect of sale of shops. For considering the issue the relevant Section 50C(1) is required to be analysed. Section 50C(1) of the I.T. Act reads as under :- (1) Where the consideration received or accruing as a result of the transfer by an assessee of a capital asset, being land or building or both, is less than the value adopted or assessed [or assessable] by any authority of a State Government (hereafter in this section referred to as the 'stamp valuation authority') fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... positive evidence indicating the fact that assessee has paid more money than what was disclosed in the purchase deed. But in the instant case, the AO is not obliged to adducing any more evidence other than the assessment made by the Stamp Authority for the purpose of computation of capital gains as the provision of section 50C(1) expressly mandates the AO to do so, in view of the above, I held that the AO has rightly taken the assessed value of stamp authority as the full value of consideration for the purpose of computation of capital gain and accordingly the addition is confirmed" 4. The assessee is not satisfied and is in further appeal before us. 5. Learned counsel's attack on orders of the authorities below consists of two legal propositions. His first and basic contention is that where difference in stamp duty valuation vis-a-vis stated sales consideration is less than 15% of the stamp duty valuation, the provisions of section 50C cannot be invoked at all. It is contended that every valuation is at best an estimate, and therefore under valuation cannot be presumed when there is only a marginal difference between such an estimate and the apparent consideration declared in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also, according to the learned counsel, section 50C will have no application in the matter. Once again, references are made to the observations in Sampath Iyengar's oft-quoted commentary and extracts are filed from the same. 6. None of these submissions, howsoever attractive as they may seem at the first blush, have legally sustainable merits. 7. When a provision for tolerance band is not prescribed in the statute, it cannot be open to us to read the same into the statutory provisions of section 50 C- no matter howsoever desirable such a provision be, even if that be so. What the provisions of section 50C clearly require is that when stated sales consideration is less than stamp duty valuation for the purposes of transfer, the stamp duty value will be subject to the safeguards built in the provision itself, taken as the sales consideration for the purposes of computing capital gains. Casus omissus, which broadly refers to the principle that a matter which has not been provided in the statue but should have been there, cannot be supplied by us, as, to do so will be clearly beyond the call and scope of our duty which is only to interpret the law is it exists. Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h respect, we are not persuaded by his thoughts on this subject. 9. As for the question of, what has been described as, unambiguous scheme of the Income-tax Act and the need of a purposive interpretation in accordance with the said scheme, no doubt there was indeed a school of thought, propounded by a person no less than Lord Denning in the case of Seaford Court Estates Ltd. v. Asher (2 AER 155 @164 ), wherein it was observed that, "...when a defect appears, a judge cannot simply fold his hands and blame the draftsmanship, He must set out to work on the constructive task of finding the intention of parliament., and then must supplement the written word so as to give 'force and life' to the intent of the legislature...", but this school of thought has been rejected by the subsequent English decision as also by decisions from our own Supreme Court. In this regard, we can do no better than to quote the following observations made by this very bench of the Tribunal over a decade ago, in the case of Tata Tea Ltd. v. CIT [2003] 87 ITD 356 wherein speaking through one of us (i.e. the Accountant Member), the Tribunal had observed as follows : ...It has been recognized by the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and fill in the gaps. This proposition, which restates in a new form the view expressed by the lord justice in the earlier case of Seaford Court Estates Ltd. v. Asher (to which lord justice himself refers) cannot be supported. ... It appears to me to be naked usurpation of Legislative function in the thin guise of interpretation and it is less justifiable when it is guesswork with what material the Legislature would, if it had to discover the gap, have filled it in. If a gap is disclosed, the remedy lies in on amending Act..." Lord Denning 's aggressive definition of the power of the Courts, so far as question of casus omissus is concerned, was severely criticized by Lord Simonds and other law lords in the above case. Lord Morton observed that "These heroics are out of place" and pointed of Lord Tucker "Your Lordships would be acting in a legislative rather than judicial capacity of the view put forward by Denning LJ were to prevail" (at page 850). As observed in Cross: Statutory Interpretation (2nd Edition, at page 45), the current tendency among English judges would appear to incline away from the Denning approach. These views are also echoed by Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
